Yesterday in the Dáil, Michael McNamra made an interesting contribution to the debate on a bill amending the Civil Registration Act. At last somebody has asked this rather obvious question,

Another issue is impediments to marriage. This is an amendment to the Civil Registration Act 2004, which was the first legislation to note that being of the same sex is an impediment to marriage. The Government tells us there will be a referendum on this but I question the need for that. Can we not simply legislate for the issue? It will be a divisive and hurtful campaign for many people and it may not be necessary to engage the public in a referendum. After all, we Members of the Oireachtas are paid to be here and the Constitution says we are legislators, although Departments are the de facto legislators and we merely apply the rubber stamp. Do we need a referendum? I am led to believe a former Attorney General said a referendum is required on this in an opinion supplied to the Government. I have not seen this opinion nor has anyone else because no one sees the opinions of Attorneys General. Can an exception be made in this case? Is there a reason such opinions are not made available? Should such opinions be made available as a matter of course? If it is a matter where the State is being sued and there is a potential liability to the State, the Government will not wish to show its hand by publishing an opinion. Surely, however, opinions relating to matters of public importance that require the time and expense of a referendum could be published. Very few people want a referendum on this issue if it can be legislated for. That is certainly the case for most of the gay people who want to marry and to whom I have spoken. Why is it not possible to legislate for this?

I am aware of cases relating to this topic such as Murray v. Ireland and a high-profile one involving Senator Zappone. In Murray v. Ireland Mr. Justice Costello of the High Court and once of this House said the Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of partnership based on irrevocable personal consent. It is clear, then, that the judgments refer to the Christian notion of marriage in the Constitution and on this basis the court found it was acceptable for Ireland to refuse to recognise same-sex marriages from abroad. There is a world of difference, however, between saying it is acceptable for the Oireachtas not to recognise same-sex marriages and saying it would be unlawful for the Oireachtas to legislate to recognise same-sex marriages or allow same-sex marriage in Ireland.

It is clear the notion of marriage in the Constitution is based on a Christian notion of marriage, but that does not mean civil marriages are unlawful in Ireland. Even divorce is lawful in Ireland since the constitutional referendum on that issue. Our notions of what provisions of the Constitution mean constantly evolve. Many people accept that gay marriage is part of the right to have a family, that the security of family life should apply to heterosexual and homosexual people equally. I question the need for a referendum on this issue if it is possible to legislate for it.

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The government was asked last week to explain what it is doing to recognise transgendered people’s rights. The UN Human Rights Committee (HRC) included a question on the issue to the State in its list of issues it wants Ireland to explain at the periodoc review next year of Ireland’s obligations under the International Convenant on Civil and Political Rights.

It is now six years since the High Court found that Irish law breaches European human rights standards on the right of a transgender person to obtain a birth certificate in their true gender. That was followed by a government decision to set up an advisory group — consisting of civil servants — to prepare a report, which was published in July 2011. (My post on that is here.)

It took a further two years to produce the Heads of Bill, in July 2013.

The HRC has asked the government to provide “detailed information on the steps taken to issue birth certificates to transgendered persons” (Link to Word document here). The government will have plenty of “outputs” to report to the Human Rights Committee:

the establishment of the advisory group,

publication of its report,

decision of cabinet on the heads of bill,

publication of heads of bill, and

discussion of them by the Oireachtas Committee on Education and Social Protection.

It would not surprise me to see the Oireachtas Committee put under some backroom pressure to get a report of its hearings out so that there is another “output” by the time the HRC holds its hearings.

I hope the HRC puts the Irish officials who appear before it under close scrutiny about a new clause it introduced between the publication of a the report of the advisory committee and the publication of the heads of bill. That provision would allow sporting organisations to prohibit trans people from participating in some acivities. Now, there are pros and cons in such a provision, but their introduction into the heads of bill stinks. It has nothing to do with the issuing of a new birth certificate and the processes and requirements for that, and lies well outside the expertise of the Department of Social Protection. It amounts to a change in anti-discrimination law, although is not framed as such. Tellingly, the Department of Social Protection introduced a new proposal to allow discrimination in one area because of a person’s gender identity or the fact that they are transgendered without addressing the need for proposals to prohibit discrimination in other areas. I would not be surprised if it were dropped during the passage of the bill as a “concession” to trans people while leaving the core proposals that are hurtful and demonstrate a lack of any understanding by the drafters of the human cost of what they say should be enacted into law.

The second question that the HRC has asked will provide not so much an opportunity as a need for weasling by the State. The HRC asks “how transgender organizations have been included in such process, including in relation to the Gender Recognition Bill”. No doubt, the government will tell the Human Rights Committee that TENI (Transgender Equality Network Ireland) made a submission to the advisory group which was considered in preparing the final report, and has appeared before the Oireachtas to speak about the issue a number of times. They will probably also refer to the “engagement” with trans organisations by the Minister when she spoke at the Transgender Europe conference in Dublin in 2012.

I expect that the Department’s reply to the HRC will not record that

the advisory committee did not include a single representative of trans people,

the report and heads of bill do not comply with European human rights standard and

the Minister has refused to meet TENI herself.

I hope the officials are called to account on that and squirm while explaining their approach.

(a) Access to services: Formal, legal recognition of one’s identity – by the issuance of an accurate and correct birth certificate – is the gateway for enjoying numerous foundational rights in Ireland. Irish transgender persons who, on the basis of their expressed gender identity, seek to avail of important public services are frequently denied access because the Irish state only recognises the sex and identity assigned to them at birth. In Ireland, obtaining, inter alia, social security, Personal Public Service Numbers and marriage certificates all require the presentation of a birth certificate. The failure of the Irish state to issue new birth certificates to transgender persons means that, in order to access these foundational services, transgender people must present an official document stating that they are somebody other than their true self. Transgender people in Ireland cannot access services on the basis of their self-identified gender, even if they have lived in that gender for the greater part of their life.

The current legal situation creates an impossible and unfair choice for Irish transgender persons: the right to self-determination and dignity, or economic survival. Some transgender individuals ultimately decide to forgo their most basic rights because of the impossibility of presenting in a gender identity not their own. Others choose to access services on the basis of their birth-assigned identity and frequently confront widespread bigotry and discrimination.

(b) Restrictions on travel: The failure of the Irish state to issue new birth certificates restricts the ability of transgender people to travel. In this regard, journeys aboard can be particularly challenging. The 2008 Passports Act gives a transgender person the right to apply for a passport with their correct gender marker. However, the fact that a person’s birth certificate will not match the passport they are requesting means that issuing passports has, despite the existence of a clear legal right, become inconsistent and arbitrary. TENI has worked with people who have had difficulty obtaining a new passport. A transgender male who attempted to access a new passport but was told that not enough time had passed since his transition to apply for a passport with the male gender marker. When the individual tried to reapply with a female gender marker, he was told that he would need to provide “proof of use” of his female gender marker. In addition, many trans people are forced to pay the cost of a ten-year passport in order to obtain a two-year passport.

(c) Discrimination by state and non-state actors: Lack of recognition legitimises discrimination. Examples of prejudice which transgender persons experience from state actors include inappropriate and degrading questions, refusals to respect expressed gender identity and wilful misunderstanding. A transgender woman told TENI how, while attending a community care clinic, a member of staff had insisted upon loudly and publically calling her by her former male name. The individual recalled how “the room was packed and the laughing and comments were unbearable.” One woman received a phone call from Social Welfare querying her change of name and gender. She explained her transition, and the government agent laughed, said ‘You’ll never be a woman!’ and then hung up. (TENI has heard several similar accounts from people across Ireland.) An Irish transgender woman returning from abroad recalled how her letters to update her Irish bank account and Social Welfare with her change of gender and name were ignored: “The Social Welfare Department sent me a tax certificate in my old male name and informed my new employer of the details.”

(d) Detrimental effect on young people: The failure to issue a new birth certificate may have an especially negative impact on transgender youth. Transgender youth are particularly vulnerable to peer bullying. The perpetuation of young transgender persons’ exclusion through the failure to legally recognise their gender identity reinforces the stress and isolation which Irish transgender youth often feel. TENI has documented the story of a young transgender male who is surrounded by supportive family and friends. However, he is currently required to wear a skirt into school each day because his Principal does not recognise his gender identity.

The refusal to issue new birth certificates also creates significant difficulties for transgender students in applying for university in Ireland. Transgender people regularly miss out on college placements, as the Central Applications Office (CAO), the body responsible for assigning university places in Ireland, is unable to cope with transgender identities. One student transitioned and subsequently decided to re-sit his Leaving Certificate Exam (Ireland’s end-of-secondary-level-education national exam). He gained the required grades for his chosen course of study. The grade the student achieved for English in his first examination results should have been carried over and added to his results the second time he sat the exam. However, the CAO noted the discrepancy in name and gender and assumed an error had been made. In such cases, the CAO office dismisses the application without query. The young man missed out on his college place. TENI has heard of several such cases.

The Government’s Draft Heads of Bill for gender recognition excludes people under the age of 18 from applying for the rights contained within. This is in conflict with the recently passed Children’s Referendum, where the Irish people voted to amend Article 42A of the Constitution to read: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

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To mark the Irish Presidency of the EU Council of Ministers, for the last six months Dublin City Council has flown the flags of the 27 EU member states on the south quays, in protocol-respecting alphabetic order beginning with the Bs for België/Belgique and България/Bulgaria near O’Connell Bridge at Aston Quay, ending with a U for United Kingdom outside the Civic Offices at Wood Quay, where the sequence is ended with the EU flag and a second appearance of Ireland (which is also flown in the Es for Éire furthter back). For some reason unknown to me, the sequence skipped a flag pole at Capel Street Bridge, which has had a banner for the Presidency instead.

At this time of the year, those flag poles would normally be flying one of the two versions of the Pride flag (a six-stripe version and a seven-stripe version) that are held in stock here, but this year the Presidency has trumped Pride.

However, two Pride flags have been added to the end of the Presidency sequence at Wood Quay, and the presidency banner at Capel Street Bridge has been replaced with a Pride flag.

Given the attitude of some of our EU partners to lgbt rights, I hope somebody can make a film of the full set of flags, driving down the quays, showing how the city has marked the presidency and has integrated the lgbt Pride flag into it. It may not be a killer punch in any hard political neogitations in Lithuania or Poland, but it would be a nice piece of footage to boost the morale of my fellow EU-citizens who do not have the social and political atmosphere that I enjoy.

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Well here’s a display of incivility, misogyny and anti-lesbianism, as related by Julie Bindel. What’s amazing to me are two aspects of this, firstly that a Radio 5 ‘satirical’ panel debate thought that it was appropriate to discuss – even, perhaps particularly, in a ‘humorous’ way – the proposition “Give me 20 minutes with her and I’m pretty sure I could turn around Clare Balding”, and then some of the incidents Bindel recounted of male antagonism to her as a lesbian.

Last year she reopened a feud with the Sunday Times television critic AA Gill, who described her as “a dyke on a bike” in his column in 2010. Balding described Gill as a “great twat” and claimed he hates clever women as she spoke in defence of Mary Beard, the on-screen historian who Gill suggested was too ugly for cameras.

Bindel argues that:

Lesbianism is a significant threat to men [just to be clear she modifies all other instances of the term ‘men’ to ‘a lot of’ or ‘men of the sexist variety’, so no she doesn’t mean all men – wbs]. After all, we are rejecting them sexually and, more importantly, making it clear we do not need to be desired by or betrothed to a man in order to have an identity. Clare Balding needs to be put in her place, according to the sexists, because she has no right to be a successful professional, a well-loved public figure and an out-and-proud lezzer.

This concept of threat is very important and deeply disturbing because of the potential for it to take very dangerous forms. I think she’s also exactly right when she argues that this is essentially a part and parcel with other forms of misogyny.

But you know, I think her conclusion is where it’s at.

What they need is a bloody good lesson in keeping their opinions to themselves.

Representatives from GLEN, ICCL, Marriage Equality, Bishops Conference, Evangelical Alliance and Order of the Knights of St.Columbanus all make presentations. With Carol Coulter, David Quinn, Colm O’Gorman and others making up a panel later in the afternoon.

Among the parties making arguments is a group of members of the US House of Representatives. Their lawyer is Paul Clement, a former Solicitor General (under George W Bush). The written Brief he filed before the Court has some argument that is, well, novel.

On page 21:

There is a unique relationship between marriage and procreation that stems from marriage’s origins as a means to address the tendency of opposite-sex relationships to produce unintended and unplanned offspring. There is nothing irrational about declining to extend marriage to same-sex relationships that, whatever their other similarities to opposite-sex relationships, simply do not share that same tendency.

On page 44:

The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies.

On pages 45 and 46:

It is no exaggeration to say that the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring.

Although much has changed over the years, the biological fact that opposite-sex relationships have a unique tendency to produce unplanned and unintended offspring has not. While medical advances, and the amendment of adoption laws through the democratic process, have made it possible for same-sex couples to raise children, substantial advance planning is required. Only opposite-sex relationships have the tendency to produce children without such advance planning (indeed, especially without advance planning). Thus, the traditional definition of marriage remains society’s rational response to this unique tendency of opposite-sex relationships. And in light of that understanding of marriage, it is perfectly rational not to define as marriage, or extend the benefits of marriage to, other relationships that, whatever their other similarities, simply do not have the same tendency to produce unplanned and potentially unwanted children.

While the country was getting ready for the budget on Wednesday, elsewhere in the Leinster House complex, an Oireachtas committee took evidence on the experience and legal situation of trans people in Ireland.

All of it is worth watching, but I was particularly moved by the evidence of Darrn matthews, from 8:30 into the film:

Darrin Matthews:

Hi. My name is Darrin Matthews. I am a board member of TENI and also run he Cork Peer Trans Support Group.

I am a transgender man.

[…]

I had a woman from the Disability Allowance Office ring me and she wanted to know why my name had changed from a female name to a male name, and when I told her it was because I was transgender, she laughed at me and hung up the phone.

When I go out and I get asked for my passport as identification to get in, I sometimes get turned away because my gender marker still says “F” and I have both my birth certificate name and my current name Darrin printed.

Everybody has a right to a private life. I would just like that my right would be recognized. Issuing new birth certificates and can easily do this and prevent embarrassment and harassment and potentially dangerous situations.

My experience of being transgender doesn’t just affect me, it also affects my family. I have an amazingly supportive and loving family. My mother put herself into almost €12,000 worth of debt so she could send me to a private school because I was bullied for 2 years in my state school. My mother took out a loan to send me to a school where I could be called Darrin, not wear a girl’s uniform and be happy and every member of staff and every student called me Darrin instead of derogatory and cruel names.

I have many friends who are straight, gay and transgender. In this day and age if a gay friend of mine come to me and told me they had gotten their official diagnosis of “homosexual”, I would be shocked and appalled. Nineteen years ago homosexuality was decriminalized and people now cannot imagine a time when homosexuality was illegal. Most people don’t know that transgender people must be diagnosed with a psychiatric illness to access treatment in this country because this is such an inconceivable and ridiculous notion and is discriminatory in its nature.

I do not feel that because I was born in the wrong body that that automatically means I have a mental illness. There is still stigmatization attached to having a mental health issue in this country and to force a psychiatric condition onto another human being can have detrimental effects on a person’s self-image and self-esteem.

When a couple applies for a civil partnership, they are not asked for their gay diagnosis to prove their homosexuality. I had to prove to many people I was happier as the man I should have always been, to my mother, my siblings, to my friends. And I had to prove that I had a psychiatric illness. But I should not have to prove anything to a complete stranger and seek their acceptance. I do not have to prove that I am ‘trans enough’ for anyone.

My mother once asked if I was sure, and if I was really sure that being Darrin was what I wanted. When I told her I couldn’t go go back and be happy, she just said to me ‘Well then we can only go forward, my son’.

I always knew transitioning would never be easy but please don’t make it any harder than it already is. All I want is to be treated as an equal. To be treated with respect and dignity as much as a non-transgender person would be. Nothing more and nothing less. Thank you.

Declaration of the 4th European Transgender Council on transphobic and racist violence and harassment, targeted at three Council participants

We the participants and organizers of this 4th European Transgender Council condemn the transphobic attack directed towards three participants of our Council in Dublin – two of the newly elected steering committee members and a Council of Europe official. Two years ago delegates were attacked during the 3rd European Transgender Council in Malmö (Sweden). We are shocked and deeply concerned that this type of violence has been repeated in Ireland. Once again it has been proven that no space is a safe space for trans people.

On Saturday night, 8th September 2012, a group of ten delegates were on their way to the Council’s social events in the Temple Bar District. Two persons, unknown to them, targeted our Turkish Steering Committee member, Kemal Ördek, and physically and verbally attacked hir and hirs colleague Laura LePrince from France. Lauri Sivonen, Advisor to the Commissioner for Human Rights of the Council of Europe, intervened to protect the delegates and the attackers spat in his face before leaving the scene. Due to the fact that their first target was one of our Turkish delegates, we assume that the attack was not only based on trans- and homophobia, but as well on racism and xenophobia.

Lauri Sivonen, accompanied by a representative of TENI, reported the incident on Saturday night to An Garda Síochána. Kemal Ördek and Laura LePrince will give a report at the garda station as well. The gardai are expected to ensure that the delegates will have a chance to report in a safer space with respect to their gender identity and expression. TGEU has been assured that TENI will observe and follow up on the process.
In view of the above,
We require An Garda Síochána to

Investigate this case quickly, properly and without any trans-, homo- or xenophobic or racist prejudice.

Implement a trans-inclusive monitoring system that will effectively record transphobic incidences.

Have LGBT trained liaison officers on duty 24 hours.

Collaborate with TENI to make Dublin and Ireland a safer space for trans people.

We demand that the State of Ireland

Ensure that gender identity and gender expression are explicitly covered by equality legislation and work to develop hate crime legislation that protects all trans people.

Collaborate with Irish trans organizations and support their work to make Ireland a country that does not tolerate bigotry, discrimination or violence against trans people.

Raise awareness that trans people’s equality and human rights must always be respected thus making sure that such incidents cease to happen.

Protect trans people’s private life through gender recognition legislation that fully respect human rights according to the Commissioner for Human Rights of the Council of Europe’s Recommendations and the Yogyakarta Principles.